Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J215992, A. Rex Victor, Judge.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Julie E. Braden, under appointment by the Court of Appeal, for Minor.
OPINION
McKINSTER Acting P. J.
K.M. (mother) appeals from the juvenile court’s order terminating her parental rights to T.S. (the minor). (Welf. & Inst. Code, § 366.26, subd. (c)(1).) Mother contends the juvenile court and the San Bernardino County Department of Children’s Services (the department) did not properly question the minor’s presumed father (father), about whether he has any American Indian heritage for purposes of complying with the Indian Child Welfare Act (ICWA). The minor’s appellate counsel filed a brief supporting mother’s argument, but seeking a reversal with directions for a limited hearing on the ICWA issue, rather than an unqualified reversal. We affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF FACTS
The minor was approximately 18 months old when initially detained on July 12, 2007. Father was incarcerated in state prison at the time the minor was removed from mother’s care.
On July 16, 2007, the juvenile court conducted a detention hearing in the matter. At the time of the hearing, father’s status as to the minor was that of an alleged father. During the detention hearing, the following exchange took place:
The Court: “[¶] . . . [¶] . . . And I inquire of mother: Do you have American Indian ancestry, ma’am?
“[Mother:] No.
“The Court: Does the child’s father have American Indian ancestry?
“[Mother:] No, Your Honor.
“The Court: All right. And but we’ll check with him when we see him just to make certain. But mother indicates that father does not have American Indian ancestry either.”
On July 16, 2007, mother filed a parental notification of Indian status form (form JV-130). On that JV-130 form, mother marked the box next to the statement, “I have no Indian ancestry as far as I know.”
Effective January 1, 2008, the JV-130 form is now designated ICWA-020. (Cal. Rules of Court, rule 5.481(a)(2).)
On September 17, 2007, the juvenile court conducted a contested jurisdiction/ disposition hearing. The hearing had been scheduled for an earlier date, but was continued due to problems regarding serving notice to father while he was incarcerated. At the jurisdiction/disposition hearing, it was noted that father waived his right to be transported to the hearing; however, father’s counsel was present at the hearing. At the conclusion of the hearing, the juvenile court found father to be the minor’s presumed father. Also on that day, the juvenile court found ICWA did not apply to the minor. The juvenile court denied reunification services for mother and father. On January 14, 2008, the juvenile court terminated the parental rights of mother, father, and all unknown fathers.
Mother and father also have another child, T.M. Their parental rights as to T.M. were terminated on July 21, 2004.
T.M. is not a subject of this appeal, but was the subject of a prior appeal, case No. E036475.
DISCUSSION
Mother contends the juvenile court and the department did not properly inquire into father’s possible American Indian heritage for purposes of complying with ICWA, and that such error is reversible per se. We disagree with mother’s argument.
We review the record to determine whether substantial evidence supports the juvenile court’s finding that the duty to inquire into father’s American Indian heritage was satisfied. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.).)
California law imposes upon the juvenile court and county welfare department “an affirmative and continuing duty to inquire whether a child [who is the subject of a section 300 petition] is or may be an Indian child.” (§ 224.3, subd. (a).) California Rules of Court, former rule 5.664(d)(2), requires a social worker to ask the parents, in a dependency proceeding, whether the child “may be an Indian child or may have Indian ancestors.” “At the first appearance by a parent . . . in any dependency case, . . . the parent . . . must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130).” (Cal. Rules of Court, former rule 5.664(d)(3).)
Former rule 5.664 was repealed effective January 1, 2008. The subject matter of the rule is now found in California Rules of Court, rule 5.481.
It is not clear from the record if the department or the juvenile court complied with their inquiry duties following the juvenile court’s finding that father is the minor’s presumed father. The department repeatedly tried to contact father to notify him of the hearings and his rights, but was unsuccessful. Also, it is unclear whether the department ever attempted to question father about his possible American Indian heritage. The juvenile court did not order father to complete a JV-130 form. However, mother, with whom father had two children, told the juvenile court that father had no American Indian heritage. Father continually waived his right to be transported to the juvenile court hearings and his counsel did not argue that ICWA was applicable.
Assuming, without deciding, that the juvenile court and the department “failed in their inquiry responsibilities, we cannot disturb the juvenile court’s order without a showing [that mother] was prejudiced by the claimed error.” (In re N.E. (2008) 160 Cal.App.4th 766, 769; see also Rebecca R., supra, 143 Cal.App.4th at pp. 1430-1431.) In this case, there was no suggestion in the juvenile court or in this court that father has or may have American Indian heritage.
Further, the parental rights of mother and father as to their other child, T.M., were terminated in 2004. By separate order, this court takes judicial notice of a paternity inquiry form filled out by father in case No. E036475. On that form, father indicated that he does not have any American Indian heritage. Accordingly, mother has failed to demonstrate the requisite prejudice.
Mother urges us to disregard our precedent of applying a harmless error analysis to the juvenile court’s failure to inquire about father’s American Indian heritage. (Rebecca R., supra, 143 Cal.App.4th at pp. 1430-1431.) Instead, mother asserts that we should follow the precedent of the Fifth District, which, in In re J.N. (2006) 138 Cal.App.4th 450, found that the juvenile court “erred in failing to ask [the] mother about her Indian heritage,” (id. at p. 453) and remanded the matter with directions to the juvenile court to inquire of the mother whether the child is or may be an American Indian child. (Id. at p. 461.) As demonstrated ante, we reaffirm our conclusion from Rebecca R. that such error is amenable to a harmless error analysis and, therefore, reject mother’s argument. (Rebecca R., at pp. 1430-1431.)
DISPOSITION
The order is affirmed.
We concur: KING J., MILLER J.